O'Donnell v Commonwealth of Australia
[2021] FCA 1223
•8 October 2021
FEDERAL COURT OF AUSTRALIA
O’Donnell v Commonwealth of Australia [2021] FCA 1223
File number: VID 482 of 2020 Judgment of: MURPHY J Date of judgment: 8 October 2021 Catchwords: PRACTICE AND PROCEDURE – application to strike-out amended statement of claim pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) – application for leave to file a proposed second further amended statement of claim – proper approach to adequacy of pleadings having regard to modern case management and information asymmetry between the parties – pleading of misleading or deceptive conduct case held to be adequate at this stage of the case – whether the applicant has standing to bring the other claims in the proceeding – whether the applicant has a real interest and/or a special interest in the subject matter of the litigation – held that the applicant does not have standing to bring the other claims
REPRESENTATIVE PROCEDURE – representative proceeding under r 9.21 of the Rules – whether to exercise discretion to order that the proceeding not continue as a representative proceeding – whether the applicant has the same interest as represented persons – whether represented persons may suffer a detriment through the representative proceeding – whether the applicant should provide notice of the proceeding to represented persons and provide an opportunity to opt out – refusal to order that the proceeding not continue as a representative proceeding
Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12GF
Commonwealth Inscribed Stock Act 1911 (Cth) ss 3, 3A, 51JA
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) s 18
Corporations Act 2001 (Cth) ss 1020AH, 1031D, 1031E
Environment Protection (Impact of Proposals) Act1974 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 23, 37M
Public Governance, Performance and Accountability Act 2013 (Cth) s 25(1)
Trade Practices Act 1974 (Cth) ss 52, 80, 163A
Federal Court Rules 1979 (Cth) r 6.13(1)
Federal Court Rules 2011 (Cth) rr 1.32, 9.21, 9.22, 16.21
Supreme Court Rules 1970 (NSW) r 13(1)
Cases cited: Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493
Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247
Campbell’s Cash and CarryPty Ltd v Fostif Pty Ltd [2006] HCA 41; 229 CLR 386
Carnie v Esanda Finance Corporation Limited (1995) 38 NSWLR 465
Carnie v Esanda Finance Corporation Limited [1995] HCA 9; 182 CLR 398
Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310
Edwards v Santos [2011] HCA 8; 242 CLR 421
Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382
Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421
Gall v Domino’s Pizza Enterprises Ltd (No 2) [2021] FCA 345; 391 ALR 675
Jameson v Professional Investment Services [2009] NSWCA 28; 72 NSWLR 281
Kerrison v Melbourne City Council [2014] FCAFC 130; 228 FCR 87
Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107; 369 ALR 583
Muldoon v Melbourne City Council [2013] FCA 994; 217 FCR 450
Murphy v State of Victoria & Anor [2014] VSCA 238; 289 FLR 337
Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319
Rivercity Motorway Finance Pty Ltd (Admin Apptd) (Recs and Mgrs Apptd) v AECOM Australia Pty Ltd (No 2) [2014] FCA 713
Robinson v Western Australian Museum [1977] HCA 46; 138 CLR 283
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Sharma v Minister for the Environment [2021] FCA 560
Shop, Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; 183 CLR 552
Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215
Stacey Brothers Plumbing Pty Ltd v Waterco Limited [2009] FCA 438
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Trkulja v Google [2018] HCA 25; 263 CLR 149
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591
Vicforests v Kinglake Friends of the Forest Inc [2021] VSCA 195
Webster (Trustee) v Murray Goulburn Co-Operative Co. Limited (No 2) [2017] FCA 1260
Wickstead v Browne (1993) 10 Leg Rep SL 2
Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1
Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255
WOTCH Inc v Vicforests (No 6) [2020] VSC 674
Division: General Division Registry Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 156 Date of last submissions: 20 August 2021 Date of hearing: 28 July 2021 Counsel for the Applicant: Mr R Merkel QC and Mr T Wood Solicitor for the Applicant: Equity Generation Lawyers Counsel for the Respondents: Mr M Hodge QC and Ms K Foley Solicitor for the Respondents: Australian Government Solicitor REASONS FOR JUDGMENT
VID 482 of 2020 BETWEEN: KATHLEEN O'DONNELL
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
SECRETARY, DEPARTMENT OF TREASURY
Second Respondent
CHIEF EXECUTIVE OFFICER, AUSTRALIAN OFFICE OF FINANCIAL MANAGEMENT
Third Respondent
MURPHY J:
INTRODUCTION
In this application the respondents, the Commonwealth of Australia, the Secretary to the Department of Treasury (Treasury Secretary) and the Chief Executive Officer of the Australian Office of Financial Management (AOFM CEO), sought orders pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the Rules) to strike-out the applicant’s Amended Statement of Claim dated 26 February 2021, and to refuse leave to the applicant to file a proposed Second Further Amended Statement of Claim dated 6 August 2021 (Proposed 2FASOC).
The substantive proceeding is a representative proceeding under r 9.21(1) of the Rules brought by the applicant, Ms Kathleen O’Donnell, on her own behalf and on behalf of all persons who at any time on or since 7 July 2020 have acquired one or more exchange-traded Australian Government Bond (eAGB) units in the form of an exchange-traded Treasury Indexed Bond with Australian Securities Exchange (ASX) code GSIC50 (eTib); and/or one or more eAGB units in the form of an exchange-traded Treasury Bond with ASX code GSBE47 (eTB), and who held one or more of those units as at the date of the pleading (represented persons).
The proceeding alleges that the respondents published information to investors and potential investors in eAGBs, variously described as “Information Statements”, “Term Sheets” and “Information Memorandums”, and on (AGB Website) (Disclosure Documents); in which information the respondents failed to disclose:
(a)the existence, nature and extent of the Physical Risk and Transition Risk (as defined) of climate change which will or is likely to lead to significant increases in Commonwealth expenditure and significant decreases in Commonwealth revenue;
(b)that as a result of those risks, prior to the maturity date of the eAGBs held by the applicant and represented persons, there will be or is likely to be a material adverse impact on:
(i)the Commonwealth’s status and reputation as a reliable and safe issuer of sovereign debt securities;
(ii)the Commonwealth’s capacity to maintain its AAA status as an issuer of sovereign debt securities;
(iii)the Commonwealth’s capacity to respond to economic shocks and to sustain balanced economic growth and a balanced budget; and
(iv)the Commonwealth’s capacity to discharge its interest and principal obligations under the eAGBs held by the applicant and by other persons holding eAGBs at the material times; and
(c)the effect or likely effect of those risks and the four matters listed at (i)-(iv) above on the value on the ASX of the eAGBs held by the applicant and represented persons.
The information which was allegedly not disclosed is defined as “Material Climate Change Information”, being information that would inform holders of eAGBs about significant risks associated with holding the eAGBs that persons would reasonably require to make a decision as to whether to acquire, continue to hold or to dispose of eAGBs; and/or information that might reasonably be expected to have a material influence on decisions by investors as to whether to hold or dispose of their current interests in eAGBs, and decisions by potential investors as to whether to purchase eAGBs.
It is alleged that by failing to disclose the Material Climate Change Information:
(a)the Commonwealth, through the Treasurer, the AOFM or otherwise, in trade or commerce, in relation to financial services, has engaged in and continues to engage in conduct that is misleading or deceptive and/or likely to mislead or deceive in breach of s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) (the misleading or deceptive conduct claim);
(b)the Commonwealth, having acted as a promoter of eAGBs, owed a fiduciary duty of utmost candour and honesty to investors who acquire or intend to acquire eAGBs (the Disclosure Duty), which they have breached and continue to breach (the disclosure duty claim); and
(c)the Treasury Secretary and the AOFM have breached and continue to breach the duty in s 25(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) (the PGPA Act claim).
The applicant provided the Proposed 2FASOC to the respondents and the Court on 6 August 2021 and for the purpose of the application I will treat that as the date of the proposed pleading.
Acting in a representative capacity, the applicant seeks declarations that between 7 July 2020 and 6 August 2021:
(a)the Commonwealth breached and continued to breach s 12DA(1) of the ASIC Act and the Disclosure Duty through its failure to disclose any Material Climate Change Information (as defined) in the Disclosure Documents; and
(b)the Treasury Secretary and the AOFM CEO breached and continued to breach their duty under s 25(1) of the PGPA Act through their failure to disclose any Material Climate Change Information in the Disclosure Documents.
No claim is made for damages or compensation.
Acting in a personal (as distinct from a representative) capacity, the applicant also seeks:
(a)declarations in the same terms as above, except that they concern continuing conduct; that is, conduct which occurred on and from 7 July 2020; and
(b)injunctions to restrain the Commonwealth and its officers, including the Treasury Secretary, the AOFM CEO and the Treasurer from:
(i)further promoting eAGBs; and/or
(ii)further issuing or being involved in the issuing of eAGBs,
until they provide in the Disclosure Documents such information as the Court directs is necessary to inform, in accordance with law, the applicant and potential investors in eAGBs about Material Climate Change Information.
For the reasons I explain I consider it appropriate to:
(a)refuse the application for an order that the proceeding not continue as a representative proceeding;
(b)strike-out the disclosure duty and PGPA Act claims on the basis that the applicant has no standing to bring them; and
(c)decline to strike-out the misleading or deceptive conduct claim.
In my view the pleading of the misleading or deceptive conduct claim will require improvement as the proceeding progresses; but I consider it to be sufficient for the case to go forward at this stage. It meets the primary purpose of a pleading by putting the respondents on notice of the case they must meet, at least sufficiently for this early stage, and defines the issues in aid of discovery. The applicant will be directed to put on a revised pleading after discovery.
THE MATERIALS
Four versions of the statement of claim have either been filed or proposed to be filed:
(a)the statement of claim dated 23 Dec 2020;
(b)the amended statement of claim dated 26 Feb 2021 (ASOC);
(c)the proposed further amended statement of claim dated 2 July 2021 (Proposed FASOC); and
(d)the Proposed 2FASOC dated 6 August 2021. This version was provided after the strike-out application was heard, pursuant to leave granted during the hearing.
The applicant no longer relied on the earlier versions of the statement of claim and the strike-out application is to be determined by reference to the Proposed 2FASOC, which represents the applicant’s best effort at pleading her case, at this stage.
The respondents, the applicant in the present application, relied on two affidavits of Mr Christopher Behrens, a Senior Executive Lawyer in the employ of the Australian Government Solicitor, the solicitors for the respondents, sworn 4 June 2021 and 27 July 2021. They relied on three sets of written submissions: (a) submissions dated 4 June 2021, which related to the ASOC; (b) submissions in reply dated 16 July 2021 in relation to the Proposed FASOC; and (c) post-hearing submissions dated 20 August 2021 in response to the Proposed 2FASOC.
The applicant, the respondent in the present application, relied on the affidavit Mr David Barnden, solicitor, a principal of Equity Generation Lawyers, the solicitors for the applicant, dated 2 July 2021, and on the documents annexed thereto; and on written submissions dated 2 July 2021. The written submissions were in relation to the Proposed FASOC rather than the Proposed 2FASOC.
THE REPRESENTATIVE PROCEEDING ISSUE
The respondents sought an order that the proceeding no longer continue as a representative proceeding.
The relevant Rules and principles
Rule 9.21(1) of the Rules authorises an applicant to bring a proceeding in a representative capacity, as follows:
A proceeding may be started and continued by or against one or more persons who have the same interest in the proceeding, as representing all or some of the persons who have the same interest and could have been parties to the proceeding.
(Emphasis added).
Rule 9.22(1) of the Rules provides that an “order made in a proceeding for or against a representative party is binding on each person represented by the representative party.”
Rules 9.21(2) of the Rules concerns the appointment of a named respondent to act in a representative capacity (to represent other respondents). It provides:
The applicant may apply to the Court for an order appointing one or more of the respondents or other persons to represent all or some of the persons against whom the proceeding is brought.
This rule is not directly relevant to the present case, but the authorities in regard to it throw some light on r 9.21(1).
Former rule 6.13(1) of the Federal Court Rules 1979 (Cth) (the 1979 FC Rules) was the predecessor to r 9.21(1). It provided for representative proceedings in the following terms:
Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
It was identical to the former r 13(1) of the Supreme Court Rules 1970 (NSW) (the 1970 NSW SC Rules), which was considered by the High Court in Carnie v Esanda Finance Corporation Limited [1995] HCA 9; 182 CLR 398 and Campbell’s Cash and CarryPty Ltd v Fostif Pty Ltd [2006] HCA 41; 229 CLR 386. Although there are some differences in wording between r 9.21(1) and the previous rule, neither party argued that the difference is material in the context of the present case.
The differences between r 9.21(1) of the present Rules and r 6.13(1) of the 1979 FC Rules include that:
(e)the phrase “unless the Court otherwise orders” does not appear in r 9.21(1). Thus, it does not expressly provide a discretion to allow the Court to order that a proceeding not continue as a representative proceeding. It is though common ground between the parties that the Court has such a discretion; and
(f)the requirement for “numerous persons” does not appear in r 9.21(1). Although there is no express requirement for numerosity, I consider an absence of numerous persons would support an order that a proceeding not continue as a representative proceeding. The respondents did not contend that there were not numerous persons who fell within the class description.
In Carnie (at 404), Mason CJ, Deane and Dawson JJ described r 13(1) of the 1970 NSW SC Rules as being “expressed in broad terms and…to be interpreted in the light of the obvious purpose of the rule, namely, to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions.” To similar effect, in Muldoon v Melbourne City Council [2013] FCA 994; 217 FCR 450 at [184], North J stated that the purpose of r 9.21 of the present Rules is “to avoid a multiplicity of proceedings that agitate the same issues”. On appeal from the decision in Muldoon, that view was endorsed in Kerrison v Melbourne City Council [2014] FCAFC 130; 228 FCR 87 at [104] (Flick, Jagot and Mortimer JJ).
Carnie establishes that if the applicant and the represented persons “have a community of interest in the determination of some substantial issue of law or fact in the action they have the same interest within the meaning of the rule”: McHugh J (at 427) with whom Brennan J agreed (at 408). To similar effect, Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the declaratory relief sought by the appellants. Further, Mason CJ, Deane and Dawson JJ said (at 404) that the “same interest” requirement “may … [extend] to a significant common interest in the resolution of any question of law or fact arising in the relevant proceedings.”
The respondents relied on s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA) as the source of the power to order that the proceeding not continue as a representative proceeding, and also on r 1.32 of the Rules which provides that the Court may make any order that the Court considers appropriate in the interests of justice. In Muldoon (at [173] and [186]) North J accepted that he had a discretion to order that the proceeding not continue as a representative proceeding, apparently in reliance on r 1.32. On appeal in Kerrison, the Full Court accepted that the Court has a discretion under r 9.21(1) to order that a proceeding not continue as a representative proceeding (at [8], [103] and [164]).
The respondents’ submissions
The respondents initially submitted (in relation to the ASOC) that two issues arise in relation to the applicant’s framing of the proceeding as a representative proceeding under r 9.21, being whether:
(a)the applicant satisfied the commonality of interest requirement in the rule; and
(b)in the exercise of discretion, the Court should permit the proceeding to continue as a representative proceeding.
They said that the Proposed 2FASOC sought to address the respondents’ criticisms as to the absence of commonality of interest between the applicant and represented persons by:
(a)narrowing the class of represented persons; and
(b)narrowing the relief sought on behalf of represented persons so that declarations with different temporal periods are sought on behalf of the class members as compared with those sought by the applicant.
The respondents said that, having regard to the changes in the Proposed 2FASOC, they did not press their submission that the application does not satisfy the threshold requirement of “same interest” under r 9.21, such that the proceeding was not properly constituted under the rule. Rather, they submitted that, combined with the fact that the represented persons have not been given notice of the proceeding, the disparity in the interests of the applicant and represented persons brings into sharp relief the artificiality of the proceeding being run as a representative proceeding, and indicates that the Court should exercise its discretion to order that the proceeding not continue as a representative proceeding.
The primary focus of the respondents’ argument was that the applicant has failed to give represented persons any notice of the proceeding. In reliance on the decisions in Muldoon and Kerrison they contended that the absence of notice is an important consideration in the proper exercise of the discretion.
Muldoon concerned a challenge, brought by protesters engaged in the “Occupy Melbourne” movement, to the validity of the “Notices to Comply” issued by the local council. The applicant sought declarations that the Notices to Comply were invalid together with injunctive relief. Justice North expressed concerns about the adequacy of the notice given to the represented persons in relation to the proceeding (at [175] and [177]) and ordered (at [186]) that the proceeding not continue as a representative proceeding. On appeal, in Kerrison, the Full Court held that in circumstances where the declaration sought had “obvious legal and practical consequences” for represented persons as recipients of the Notices to Comply, North J’s concerns were valid. Their Honours upheld the decision to order that the proceeding not continue as a representative proceeding (assuming it was properly started as one) on a number of bases, including that represented persons who had been served with Notices to Comply had a real interest in knowing what was purported to be done on their behalf and how it might affect them (at [102]-[103] and [110]).
In relation to the absence of notice to represented persons the respondents also relied on:
(a)Rivercity Motorway Finance Pty Ltd (Admin Apptd) (Recs and Mgrs Apptd) v AECOM Australia Pty Ltd (No 2) [2014] FCA 713 at [118]-119], in which Nicholas J refused an application for an order under r 9.21(2) for reasons including that there was no evidence that any of the persons who would become represented persons, if the order appointing a representative respondent to the proposed cross-claim were made, had been notified of the application or consented to the making of the order; and
(b)Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [27]-[29], in which Greenwood J did not permit a representative order to be made under rule 9.21 because there was no evidence of a process put in place to enable those who would be represented “to say or resolve that they accept that the applicants for joinder represent their common interest or have their approval to represent their interests.”
The respondents submitted that the applicant’s use of the r 9.21 procedure has real consequences for represented persons as they will be bound by orders made for or against them (r 9.22(1)) and orders may be enforced against them with the Court’s leave (r 9.22(2)). They said that the applicant has failed to explain why notice had not been given to represented persons, and that instead the applicant’s submissions focused on the absence of any possible disadvantage that might be suffered by a represented person if the relief sought by the applicant is granted.
On the respondents’ argument, the applicant is, in effect, running a securities class action in which she alleges that there has been material non-disclosure on the part of the respondents. In order to succeed she must establish that the respondents have failed to disclose some presently non-public information which is material to the price or value of eAGBs on the ASX. On her case, once the material information is disclosed by the respondents it will materially affect the value of the eAGBs held by her and the represented persons.
They submitted that if the applicant is successful in the proceeding, the premise of her case is that whatever relief she obtains (whether declaratory or injunctive) is likely to have a detrimental effect on the value of eAGBs. On that basis they argued that the applicant seeks to compel the respondents to take steps to make disclosure of information that would (on her case) result in a diminution of the value of the bonds held by the represented persons, without giving notice to them. Senior Counsel for the respondents said, pithily, that a fundamental problem for the applicant is that she “is not seeking to vindicate anybody’s rights based on loss that they have suffered in the past. She is seeking to cause them loss in the future.”
The respondents submitted that the lack of commonality of interest can also be seen in that, if the applicant is successful in the proceeding, represented persons will suffer a detriment because they will be unable to rely upon the declarations made in this proceeding in any suit against the respondents for loss or damage they have suffered arising from a reduction in the value of their eAGBs. That inability was said to arise because they will be treated as having sought the very declarations that caused them that loss.
They contended that the potential detriment to the interests of represented persons must also be seen in the light that there is no legitimate purpose for the applicant in bringing the proceeding in a representative capacity. They said that the following matters are important in relation to the Court’s discretion to order that the proceeding not continue as a representative proceeding, noting that the applicant has not:
(a)identified any reason why it is necessary or desirable for her to commence the proceeding as a representative proceeding;
(b)put on any direct evidence to explain why she brought the proceeding on a representative basis;
(c)explained why she has elected not to give notice of the proceeding and its implications to the represented persons; and
(d)explained how she can practically conduct a proceeding as the representative of the class while seeking injunctive relief only on her own behalf because, presumably, she recognises that the represented persons’ interests are not served by that relief.
The respondents also attacked the applicant’s motives in bringing the proceeding in a representative capacity. They said that in circumstances where: (a) it was open to the applicant to seek the same declaratory relief in a personal capacity; (b) she has offered no explanation for commencing the proceeding in a representative capacity; (c) doing so may be detrimental to the interests of represented persons; and (d) she has given no notice to the represented persons; the obvious inference is that the applicant has sought to clothe herself in the seriousness and responsibility with which class actions are conducted in this Court, and to garner media attention through a headline such as “Climate change class action commenced in relation to Australian Government Bonds”. Senior Counsel went as far as to describe the case as a “pseudo climate change class action”, and argued that the purposes of the r 9.21 representative procedure do not include enabling a party to bring a proceeding in a representative capacity for such purposes.
They contended that the purposes of the representative procedure include facilitating the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions: Carnie at 404; Fostif at [55]. They said that in circumstances where the applicant has given no notice to the class members she purports to represent, and where she has not put on an affidavit to explain why she has chosen the commence the proceeding in this way, or why the Court should permit the proceeding to continue as a representative proceeding, it cannot be assumed that the administration of justice will be facilitated by permitting the proceeding to continue as a representative proceeding.
They also contended that, in the circumstances, the proceeding constitutes an abuse of process as it brings the administration of justice into disrepute, and it should be struck-out as an abuse of process pursuant to r 16.21(1)(f) of the Rules. Their submissions, however, did not set out any basis for concluding that the proceeding is an abuse of process, and I need not further address that submission.
Consideration
As I have said, in their reply submissions (made in relation to the Proposed FASOC), the respondents no longer pressed their earlier submission that the applicant did not meet the threshold requirement of having the “same interest” as the represented persons and that the proceeding was therefore not properly constituted under r 9.21. Rather, they submitted that the lack of commonality of interest meant that the Court should exercise its discretion to order that the proceeding no longer continue as a representative proceeding. In their post-hearing submissions (made in relation to the Proposed 2FASOC) the respondents said that the commonality of interest point had been re-enlivened by the applicant’s arguments in the hearing; but they still did not contend that the applicant failed to satisfy the “same interest” threshold requirement of the rule. Instead they reiterated their earlier submission that the disparity in the interest of the applicant and represented persons showed that it was appropriate to exercise the discretion to order that the case not continue as a representative proceeding. I proceed on that basis.
The discretion to order that a proceeding not continue as a representative proceeding is a broad one, and whether it is appropriate to exercise it may depend, amongst other things, on the facts and circumstances of the particular case. The respondents had the onus to establish that it is appropriate to exercise the discretion. For the reasons I now explain, they did not persuade me that it was appropriate to do so in the circumstances the present case.
First, the respondents made much of the fact that the applicant did not put on evidence to prove that she had the same interest as the represented persons. Several things should, however, be kept in mind in relation to the respondents’ argument.
(a)The respondents did not argue that the applicant failed to satisfy the threshold requirements of r 9.21(1), and the applicant was not therefore required to put on evidence that she did so. Of course, the absence of such evidence is relevant to the exercise of the discretion but the respondents have the onus to show that the Court should order that the proceeding not continue as a representative proceeding;
(b)the “same interest” that the applicant relied on is that she and the represented persons acquired eAGBs with the same specified ASX codes (and thus the same maturity dates), in the same period, and had and have the same interest in receiving information that:
(i)will inform holders of eAGBs about significant risks associated with holding the eAGBs that persons would reasonably require to make a decision as to whether to acquire, continue to hold or to dispose of eAGBs; and/or
(ii)might reasonably be expected to have a material influence on decisions by investors as to whether to hold or dispose of their current interests in eAGBs, and decisions by potential investors as to whether to purchase eAGBs;
(c)The r 9.21(1) procedure can be utilised in circumstances where the members of the represented group have not consented to or even been made aware of the proceeding: Carnie at 429 (McHugh J), endorsed by the High Court in Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 at [14] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). The rule does not require the applicant to ask represented persons in advance of a proceeding to ascertain their views as to whether their interests are coincident with the applicant’s interests, and she did not do so. Without having some communication with the represented persons, it is difficult to see what probative evidence the applicant could have adduced in relation to her assertion that she has the same interest as the represented persons; and
(d)Even if it was necessary for the applicant to communicate with represented persons to ascertain whether their interests were coincident with hers it would have been impossible at this stage. I assume that the Commonwealth has a register which records the identity of persons who acquired eAGBs with the specified codes during the relevant period, but the applicant could not yet have had access to it.
Finally, save for one assertion (which I do not accept), the respondents did not identify any possible detriment that might be suffered by a represented person if the relief sought by the applicant in a representative capacity is granted.
Second, the question of whether a representative party has the “same interest” as the represented persons is concerned with “an interest in the proceeding” which must be judged by reference to the effect of the matters at issue on the rights and obligations of the representing party and the represented persons: Stacey Brothers Plumbing Pty Ltd v Waterco Limited [2009] FCA 438 at [25] (Kenny J). In the absence of evidence from either party, the issue as to the commonality of interest between the applicant and the represented persons falls to be decided largely by reference to the pleadings.
The class description encompasses all persons who at any time between 7 July 2020 and 6 August 2021 acquired one or more eAGBs with the specified codes (and thus with the same maturity dates) and who continue to hold one or more of those eAGBs as at 6 August 2021: see paragraph [3] of the Proposed 2FASOC. The class description and the length of the relevant period indicates that the class is likely to comprise a wide range of people. In general terms, it seems likely that the class will include people who do not share the applicant’s interests in the proceeding and who wish to have no part of it; others who share the applicant’s interests and who wish to participate in the proceeding; and others who are disinterested in the case. Senior Counsel for the respondents accepted, correctly in my view, that there may be represented persons whose interests are aligned with the applicant’s interests in the proceeding.
Carnie establishes that if the applicant and the represented persons have a community of interest in the determination of any substantial question of law or fact in the proceeding, they have the “same interest” within the meaning of r 9.21(1). Mason CJ, Deane and Dawson JJ held (at 404) that for the purposes of the rule, persons having separate causes of action in contract and tort might have the same interest in a proceeding; and Toohey and Gaudron JJ (at 420-21), and McHugh (at 430) held that the fact that represented persons’ claims may arise under separate contracts is insufficient to show that they do not have the same interest. Toohey and Gaudron JJ said (at 422) that the onus was on the named plaintiffs “to identify the class with sufficient particularity”, without necessarily identifying every member, and that they had done so, noting that “[t]he class is not open ended; it is limited to those persons who have credit sale or loan contracts with the respondent which have been varied in circumstances where the variation has been executed in such a way as to be inconsistent with the [Credit] Act”. Here, the respondents made no suggestion that the class of represented persons had not been identified with sufficient particularity.
In my opinion it can reasonably be said that the represented persons have the same interest as the applicant in knowing whether the respondents, in the period between 7 July 2020 and 6 August 2021, breached the law in the manner alleged in the proceeding (such that it is appropriate to grant declaratory relief) by failing to disclose the Material Climate Change Information (as defined) to them. To apply the approach of Toohey and Gaudron JJ in Carnie (at 421), the applicant and the represented persons stand to be equally affected by the declaratory relief sought by the applicant in a representative capacity.
Carnie also establishes that it is unnecessary for the applicant to show that her interests coincide with those of the represented persons in relation to every issue or all forms of relief sought in the proceeding, whether sought personally or in a representative capacity.
The respondents’ submitted that because the applicant, acting in a personal capacity, sought declarations with a different temporal period to those she sought in a representative capacity, and also sought injunctive relief in a personal capacity, she recognised that the interests of represented persons are not served by such relief. I note that the applicant acknowledged the possibility that the interests of the applicant and represented persons might diverge in relation to the injunctive relief sought; however, neither party articulated how represented persons might be disadvantaged by the different relief sought in a personal capacity, and it is not apparent to me what that possible disadvantage or detriment might be.
Strictly speaking, the “same interest” requirement applies to the claims brought in a representative capacity, not to any claims brought by an applicant personally. Any such additional claims are not brought on behalf of the represented persons, and the same interest requirement is not required to be satisfied. I respectfully agree with Kenny J’s observation in Stacey (at [25]), albeit made in the different context of an application for the appointment of a representative respondent (under the predecessor to r 9.21(2)), that “[a] representative proceeding will not necessarily be defeated because some members, or even the representing party, have separate interests additional to a common interest, providing there is a common interest.”
Further, having regard to my view in relation to the requirement for notice to the represented persons, and in the circumstances of the present case, I consider the different relief sought by the applicant in a personal capacity has little significance in deciding whether to order that the case not continue as a representative proceeding. Provided the applicant gives notice of the proceeding to represented persons including as to the different relief that she seeks in her personal capacity, and represented persons have an opportunity to opt out of the proceeding, the existence of these additional claims does not justify an order that the case not continue as a representative proceeding.
Third, the respondents submitted that, if the representative proceeding is successful, represented persons will suffer a detriment because they will be unable to rely upon the declarations obtained in any claim for compensation or damages they wish to bring against the respondents. That was said to be so because, as represented persons, they will have sought the very declarations that caused the diminution in the value of their eAGBs.
It is unnecessary to decide, but I doubt that submission is correct. It is difficult to see why a represented person - who has the benefit of a declaration that the respondents engaged in misleading or deceptive conduct in contravention of s 12DA of the ASIC Act in relation to eAGBs he or she acquired in the relevant period - would somehow be disentitled from claiming damages under s 12GF of the Act for any loss or damage causally connected to the respondents’ contravening conduct.
The question is, however, unnecessary to decide because, if the relief sought might potentially cause some detriment to represented persons, they should be given notice of that potential detriment and be provided an opportunity to opt out of the proceeding.
Fourth, it is plain on the authorities that whether or not represented persons have been given notice of the proceeding may be an important consideration in the exercise of the discretion to order that the proceeding not continue as a representative one. That is particularly so when the granting of the relief sought might be demonstrated to actually, or be likely to, disadvantage some of the represented persons: see the remarks of Gleeson CJ in Fostif at [4]-[7] where his Honour discusses Carnie; see also Muldoon (at [175] and [177]) affirmed in Kerrison (at [102] and [110]).
But the fact that in the present case the represented persons have not had notice of the proceeding, or of any potential detriment they might suffer through the proceeding, must be seen in context. As is the position in most “open class” representative proceedings, at this early stage of the case it is impossible for the applicant to notify represented persons of the proceeding, or at least to do so effectively. At this early stage of the case, the applicant has not had access to any register which records the identity of persons who acquired eAGBs with the specified codes in the relevant period.
In Carnie (at 422), Toohey and Gaudron JJ explained that the Court may give directions to enable the proceeding to be determined “with justice to all concerned”, and said that:
The simplicity of the rule is also one of its strengths, allowing it to be treated as a flexible rule of convenience in the administration of justice and applied “to the exigencies of modern life as occasion requires” ([Taft Vale Railway Co. v. Amalgamated Society of Rai/way Servants, [1901] A.C. 426, at p. 443]). The Court retains the power to reshape proceedings at a later stage if they become impossibly complex or the defendant is prejudiced.
To similar effect, Brennan J said (at 408) that it is “precisely because of the flexible utility of the representative action that judicial control of its conduct is important, to ensure not only that the litigation as between the plaintiff and defendant is efficiently disposed of but also that the interests of those who are absent but represented are not prejudiced by the conduct of the litigation on their behalf”. Later in that passage his Honour said further:
…if, for any reason, the court is not satisfied that the interests of the absent but represented class are being properly advanced, the court should exclude the represented persons from the action. That power can be exercised at any time before the judgment is perfected.
(Citations omitted).
In the circumstances of the present case, I do not accept that the absence of notice to class members justifies an order that the proceeding not continue as a representative proceeding. Instead, it is appropriate to require the applicant to give notice of the proceeding to represented persons, including as to the relief being sought and its potential impact on them, and of their right to opt out of the proceeding should they wish to do so. Once represented persons have been provided with an appropriate Court-approved notice, they will be well-placed to decide whether their interests in the proceeding coincide with those of the applicant and whether to opt out. Adoption of such a procedure will protect against represented persons being bound by the result in a representative proceeding in which they may not have the same interest as the representative applicant.
This approach is consistent with the approach ultimately taken in Carnie. As Gleeson CJ explained in Fostif (at [4]-[6]), when Carnie was before the NSW Court of Appeal the plaintiffs sought a declaration that the relevant variation agreements in relation to the loan agreements of the borrowers, being represented persons, be found to be “null and void and of no effect”: see Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382 at 386 (Gleeson CJ). Those variation agreements, to the extent to which they relieved the original loan position, were beneficial to the borrowers, and there was a doubt about whether it was in the interests of all represented persons to have their variation agreements declared null and void. Upon the plaintiff’s success before the High Court the case was remitted to the NSW Supreme Court, where Young J said that a “very worrying aspect of [the] case [was] the possibility that [some borrowers] may, as a result of the plaintiffs’ activity, which appears to have been taken without any reference to them, be left with a liability to Esanda”: see Carnie v Esanda Finance Corporation Limited (1995) 38 NSWLR 465 at 474. His Honour directed that notices be sent to represented persons to advise them of an opt-in procedure that had been devised for use in the proceeding. Subsequently, the plaintiffs announced they were unwilling to incur the expense involved in providing notice to the represented persons and in those circumstances it was ordered, by consent, that the action would not go ahead as a representative proceeding.
Here, the applicant does not oppose a direction for a Court-approved notice to be sent to represented persons informing them of the proceeding, of the potential effects of the relief sought, and that they may opt out of the proceeding should they so wish.
Fifth, the respondents’ attack on the applicant’s motivation in bringing the proceeding as a representative proceeding, including that is an improper attempt to garner public attention and that the proceeding is a “pseudo climate change class action”, has little force. The fact the representative proceeding seeks only declaratory relief and that the applicant may seek to garner media attention for the proceeding is neither here nor there. These days, it is common place for the parties to large litigation to consider, and attempt to influence, the way the litigation is seen in the eyes of the public. There is little or no evidence as to how the applicant has sought to garner media attention regarding the proceeding. But to the extent that she may have done so, it carries little weight in deciding whether to order that the proceeding not continue as a representative proceeding.
If, in fact, it is the case that the applicant has sought to garner media attention for the proceeding, it may be open to infer that she did so because she wishes to attract the interest of persons who acquired eAGBs in the relevant period. That inference is supported by evidence that the website of the applicant’s solicitors invites people to register their interest in participating in the proceeding as represented persons. There is nothing wrong with the applicant seeking to do so. The purposes of r 9.21 representative procedures include enhancing access to justice: Jameson v Professional Investment Services [2009] NSWCA 28; 72 NSWLR 281 at [126], [128], [131] (Spigelman CJ, with Allsop J (as his Honour then was) and Ipp J agreeing). That purpose is largely achieved through aggregation of the claims of represented persons or class members so that their claims can be heard in one proceeding rather than many, at a lower cost because the costs are shared between many, without exposure to adverse costs liability, and so that the uneven playing field in litigation between ordinary citizens and large corporations or government is rebalanced. Thus, aggregation of claims is central to the utility of representative procedures in promoting efficiency and access to justice. In practice, aggregation is often achieved by solicitation, sometimes through mass media, and solicitation by Australian lawyers has for many years been expressly authorised by the uniform rules of professional conduct. Solicitation by commercial third parties such as litigation funders has also been accepted by the courts. It is inherent in the nature of representative procedures that some solicitation may be required: see generally, Murphy B and Cameron C, “Access to justice and the evolution of class action litigation in Australia” (2006) 30(2) Melbourne University Law Review 399.
It is relevant too that class actions and other representative procedures are often utilised by individuals, and groups of people, to bring forward cases based in their view of the public interest, doing so on behalf of a class asserted to have the same or similar legal claims and interests. Provided there exists a bona fide legal claim in which the applicant and represented persons have the same interest, it is not impermissible for an applicant in a r 9.21 representative proceeding to seek only declaratory relief, and it is far from uncommon that representative proceedings are so utilised. Some recent examples include Muldoon, as well as the following:
(a)Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215, in which two Indigenous young people, on their own behalf and on behalf of persons who were charged with a criminal offence on or prior to 24 October 2018 and therefore were at risk of detention in a youth detention centre in the Northern Territory, brought a r 9.21(1) representative proceeding seeking declarations and injunctions in relation to the conditions of detention in the relevant centres; and
(b)Sharma v Minister for the Environment [2021] FCA 560, in which eight Australian children, on their own behalf and on behalf of children who ordinarily reside in Australia, brought a r 9.21(1) representative proceeding seeking a declaration that the Commonwealth Minister for the Environment owed them and other Australian children a duty of care to protect them from a foreseeable risk of harm arising from climate change, and an injunction to restrain an apprehended breach of that duty.
Sixth, this issue was not the subject of submissions, but it is plain that, acting in a personal capacity only, the applicant could obtain the same declaratory relief as she seeks in a representative capacity. While any declarations made in a personal proceeding would only bind her and the respondents, it is reasonable to expect that the Commonwealth would thereafter conduct itself in accordance with the Court’s findings. It might be said that allowing this case to continue as a representative proceeding is inconsistent with the overarching purpose of the civil practice and procedure under s 37M of the FCA because it is likely to be slower and more expensive than a proceeding seeking the same relief by the applicant in her personal capacity, particularly having regard to the requirement for notice to represented persons and for Court approval of any settlement: see Arthur at [78]-[79].
This was not argued, but I would be disinclined to accept s 37M dictates that the proceeding must not continue as a representative proceeding. As the examples given above show, it is commonplace for people to band together to bring a representative proceeding or class action seeking declarations and/or injunctive relief in relation to a legal issue in which they have the same or similar interests. Because they have a common interest in the subject matter of the proceeding they may wish to be represented persons or class members even when the same declarations or injunctions could be obtained by the applicant acting in a personal capacity. Having regard to the access to justice purpose of representative procedures it cannot be a requirement that such cases must only be brought in a personal capacity because to do so would be cheaper and quicker. Further, people may wish to be represented in a representative proceeding because they wish to rely on any declaration made to subsequently claim damages. Thus, declaratory relief obtained in a representative proceeding can have utility for represented persons even though the same declaration could have been obtained more cheaply and quickly in a claim brought by the applicant personally.
In the circumstances of the present case I am not persuaded that it is appropriate to order that the proceeding not continue as a representative proceeding.
THE MATERIAL INFORMATION ISSUE
The respondents seek an order striking out the “material information” allegations under r 16.21(c), (d), (e) and (f) of the Rules.
Summary of the pleading
Australian Government Bonds
The pleading of the statutory framework underpinning the claims in the Proposed 2FASOC may be summarised as follows:
(a)the Treasurer administers the Commonwealth Inscribed Stock Act 1911 (Cth) (Inscribed Stock Act) (at paragraph [17]), and under s 3 of that Act; “stock” includes “Treasury Bonds” (at [19]). Under s 3A(1) of the Inscribed Stock Act, the Treasurer has power to borrow money on behalf of the Commonwealth by issuing stock denominated in Australian currency (at [21]). The power in that provision has been delegated to officers of AOFM pursuant to s 51JA of the Inscribed Stock Act (at [22]);
(b)under s 3A of the Inscribed Stock Act, officers of the AOFM, on behalf of the Commonwealth, can issue Treasury Bonds (TBs) and Treasury Indexed Bonds (TIBs), collectively, Australian Government Bonds (AGBs) (at [29]);
(c)under s13AA of the Inscribed Stock Act, the Consolidated Revenue Fund is appropriated to the extent necessary for the payment of principal secured by stock, and interest on the principal (at [26]). The Commonwealth is obliged to make interest and principal payments on eAGBs in accordance with their terms (at [35]);
(d)there is a wholesale market for AGBs in which financial institutions may participate (at [30]-[31]). Retail investors, through eAGBs, can participate indirectly in the wholesale market by obtaining “depository interests” in AGBs, as defined in the Inscribed Stock Act (at [33]). The Commonwealth has entered into agreements with Computershare Investor Services Pty Ltd, pursuant to which Computershare is a depository interests register operator (at [37]); and also ASX Operations Pty Ltd, pursuant to which eAGBs may be traded on the ASX (at [38]);
(e)the Commonwealth has prepared an Information Statement (within the meaning of s 1020AH of the Corporations Act 2001 (Cth) (Corporations Act)) for each class of eAGB, which is published on the AGB Website page headed “Investor Information Statements” (at [47]-[48]). The AGB Website page headed “How to invest” directs potential investors to read the relevant Term Sheet for the specific series of the underlying AGB, and the relevant Information Memorandum for each class of underlying AGB (at [49]);
(f)the Information Statements for eTBs and eTIBs direct the reader to the relevant Term Sheet and the relevant Information Memoranda for that series or class of AGB. The Information Statements include a summary of risks which prospective investors should consider when deciding whether to invest in such eAGBs, and identifies those risks as changes in market price, conversion by the Australian Government (which, in relation to eTBs, is said to be a reference to the risk of conversion to an indexed bond), and (in relation to eTIBS) deflation. The Information Statements do not identify any other risks associated with investing in them (at [54]-[55]);
(g)the AGB Website includes the subheadings “Risks of eTBs” and “Risks of eTIBs” under which it identifies those risks only as changes in market price, conversion by the Australian government and (in relation to eTIBS) deflation. The AGB Website does not identify any other risk associated with investing in them (at [56]-[57]); and
(h)the Term Sheets and the Information Memoranda for each class or series of AGB does not disclose any risks associated with investing in AGBs (at [58]-[59]).
Alleged climate change risks
Part D of the Proposed 2FASOC is headed “Climate Change Risks”. Part D.1 of the 2FASOC sets out the “Physical Risk” that it is alleged Australia will experience as a result of climate change. Part D.2 sets out the “Transition Risk” that it is alleged Australia will face by reason of transitioning to achieve the Commonwealth’s publicly announced objective of reducing Australia’s greenhouse gas (GHG) emissions by 26% to 28% below 2005 levels by 2030, and the target of net zero global GHG emissions by 2050. Part E is entitled “Effect of Risks on eAGBs” and defines the term, Material Climate Change Information, by reference to the terms, Physical Risk and Transition Risk.
Physical Risk
Physical Risk is defined at paragraph [64C] of the 2FASOC and its meaning is to be understood by reference to paragraphs [60], [61]-[64B]. Those paragraphs are set out in Schedule A to these reasons and may be summarised as follows:
(a)on and since 7 July 2020, there is a significant likelihood that the climate is changing, and will continue to change, as a result of anthropogenic influences (at [60]). Australia is likely to experience a range of “Physical Impacts”, being adverse weather events, as a result of climate change over the three decades before the maturity date of the eAGBs held by the applicant and represented persons. These Physical Impacts include matters such as more extremely hot days and fewer extremely cool days; a longer fire season for the south and east of Australia; an increase in the number of dangerous fire weather days; more intense short-duration heavy rainfall events, and serious flooding events; and continued warming and acidification of Australia’s surrounding oceans (at [61]);
(b)the Commonwealth relies upon receiving significant revenue, directly and indirectly, from a number of generally identified industries and communities. For example, the agricultural, resources and tourism industries; including industries and communities located in bushfire-prone, drought-prone and heatwave prone areas. It also relies upon receiving revenue from the individuals employed by, or associated with those industries and communities (at [62]);
(c)in the three decades before the maturity dates of the applicant’s eAGBs, significant additional expenditure by the Commonwealth will, or will likely, be required to respond to the emergency weather events of the kind referred to as Physical Impacts; and in order to maintain the ongoing financial viability of the industries and communities set out in paragraph [62] (at [63]);
(d)the financial viability of those industries and communities is particularly vulnerable to being, and will be or will likely be, “negatively affected” by the Physical Impacts before the maturity dates of the applicant’s eAGBs (at [64]); and
(e)those negative effects will lead, or will be likely to lead, to a substantial reduction in revenue received by the Commonwealth from the relevant industries and communities before the maturity dates of the applicant’s eAGBs (at [64B]).
The combination of the increase or likely increase in Commonwealth expenditure set out in paragraph [63]; and the decrease or likely decrease in Commonwealth revenue set out in paragraph [64], is defined as the “Physical Risk”.
Transition Risk
Transition Risk is defined at paragraph [75C] of the Proposed 2FASOC, and its meaning is to be understood by reference to paragraphs [60A] and [68]–[75B]. Those paragraphs are set out in Schedule B and may be summarised as follows:
(a)an objective of the Paris Agreement, which was ratified by the Commonwealth on 10 November 2016, is to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels (Paris Objective) (at [60A]).
(b)under the Paris Agreement, the Commonwealth is obliged to prepare, communicate and maintain nationally determined contributions to reduce its GHG emissions (at [68]);
(c)the Commonwealth has determined to reduce GHG emissions by 26%-28% below 2005 levels by 2030 (at [69]);
(d)to achieve the Paris Objective it will be necessary for global GHG emissions to be net zero by 2050 (Net Zero Target) (at [71]);
(e)the implementation of the measures which are necessary for the Commonwealth to pursue in order to reach the Net Zero Target (Net Zero Measures) will require significant additional expenditure by the Commonwealth before the maturity dates of the applicant’s eAGBs (at [74]);
(f)the less time the Commonwealth has to meet the Net Zero Target after introducing the Net Zero Measures, the more that the Commonwealth will, or will likely be required to, spend on implementing the measures, and countering any adverse impact on the Australian economy as a result of the delayed implementation of those measures (at [75]);
(g)as a result of other countries seeking to achieve their own net zero GHG emissions objectives, global demand for exports of Australia’s fossil fuel will decrease, or is likely to decrease, before 2050 (at [75A]); and
(h)the decrease, or likely decrease, in demand for fossil fuel will result, or is likely to result, in a decrease in revenue received by the Commonwealth from the fossil fuel and export industries (at [75B]).
The combination of the increase or likely increase in Commonwealth expenditure set out in paragraphs [74] and [75]; and the decrease or likely decrease in Commonwealth revenue set out in paragraph [75B], is defined as the “Transition Risk”.
Effect of alleged risks on eAGBs
Part E of the Proposed 2FASOC is headed “Effect of Risks on eAGBs”. “Material Climate Change Information” is defined in paragraph [77A] and its meaning is to be understood by reference to paragraphs [76] and [77]. Those paragraphs are set out in Schedule C and may be summarised as follows:
(a)(at [76.1]-[76.4]) by reason of the Physical Risk and the Transition Risk, prior to the maturity of the applicant’s eAGBs, there will be or is likely to be, a material adverse impact on four matters relating to the Commonwealth, namely:
(i)its status and reputation as a reliable and safe issuer of sovereign debt securities;
(ii)its capacity to maintain its AAA status as an issuer of sovereign debt securities;
(iii)its capacity to respond to economic shocks and to sustain balanced economic growth and a balanced budget; and
(iv)its capacity to discharge its interest and principal obligations under the eAGBs held by the applicant and by the other persons holding eAGBs at the material times;
(b)those four matters, separately and cumulatively, are factors that are, or are likely to be, material to the value of eAGBs on the ASX (at [77]);
(c)(at [77A]), by reason of the matters in paragraphs [76] and [77], information about the existence, nature and extent of the Physical Risk and Transition Risk; and/or the effect or likely effect of those risks:
(i)on the four matters set out in subparagraph (a) above; and/or
(ii)on the value of eAGBs on the ASX, including those held by the applicant and the represented persons,
(Material Climate Change Information), is information that:
(iii)will inform holders of eAGBs about significant risks associated with holding the eAGBs, that persons would reasonably require for the purpose of making a decision as to whether to acquire, continue to hold, or to dispose of eAGBs; and/or
(iv)might reasonably be expected to have a material influence on decisions by holders of eAGBs, as to whether to hold or dispose of their current interests in eAGBs; and decisions by potential investors of eAGBs as to whether to purchase eAGBs.
It is also alleged that at all material times, each of the respondents were aware, or ought to have been aware, of each of the matters that constitutes Material Climate Change Information (at [77B], which paragraph is also set out in Schedule C).
The respondents’ submissions
The respondents submitted that the applicant had made substantial amendments to attempt to address the problems with her pleading of the material information that she alleges ought to have been disclosed, which amendments failed to address the fundamental problems in the pleading, and in certain respects compounded or highlighted them.
As a result of the various changes in the applicant’s pleading, and the respondents’ failure to clearly identify which of their submissions they wished to maintain having regard to the proposed amendments, it was not always clear to me which submissions the respondents continued to press. Having said that, in their post-hearing submissions in relation to the Proposed 2FASOC, they said that paragraphs [19]-[34] of their submissions dated 4 June 2021 in relation to the ASOC remained largely applicable. The respondents there submitted that there are three steps in the applicant’s case on “material information” and none has been properly pleaded.
The first step is to allege that climate change will have an effect on the financial position of the Commonwealth. The respondents contended that the applicant made expansive allegations in paragraph [76] about the effect of climate change on four matters relevant to the Commonwealth’s financial position, but failed to plead the important facts that would be required for this step.
The second step is to allege that the effect of climate change on the financial position of the Commonwealth was not disclosed but if disclosed would have a material effect on the value of the eAGBs. The respondents said that the applicant’s case is forward looking and yet the pleading does not attempt to properly explain how the effect will be material or when the material effect is likely to commence. Further, the pleading fails to grapple with the difficulty that the value of eAGBs traded on the ASX will reflect the knowledge of the participants in the market, and the premise of the applicant’s case must be that the value of eAGBs will be effected once the market becomes aware of these matters. That is so because if those matters are already publicly known there cannot be a future effect. And yet the premise of the applicant’s case is that she knows these matters and she does not suggest that she is in any special position compared to other investors or potential investors. She seems to allege that these generalised matters still have not been revealed to the market even though she has pleaded them. This contradiction reflects the failure to plead any material facts establishing that there would be a likely effect in the future on the value of the relevant eAGBs.
The third step is to allege knowledge of the matters giving rise to the first two steps, including the non-disclosure of material information by officers of the Commonwealth. The respondents said that in relation to this step, the applicant had made a serious allegation without any proper factual foundation being pleaded or particularised. In this regard, however, I note that the paragraphs in the ASOC which pleaded knowledge (paragraphs [78] and [79]) have been deleted in the Proposed 2FASOC, and instead it is alleged (at paragraph [77B]) that the respondents were aware of or ought to have been aware of the Material Climate Change Information. The respondents’ post-hearing submissions in relation to the Proposed 2FASOC gave no attention to the issue of “knowledge” and I proceed on the assumption that this earlier objection is not maintained. In any event, as Senior Counsel for the respondents accepted, there is no requirement for the applicant to establish subjective knowledge on the part of the respondents to make out the misleading or deceptive conduct claim. That claim must be established by reference to objective facts which should have been, but were not, disclosed by the respondents.
The respondents submitted that the fundamental flaw in the pleading is that each of the three claims advanced by the applicant is founded on an allegation of non-disclosure of material information but the applicant does not identify with specificity what it is she says should have been/ should be disclosed. They said this is highlighted by the fact that the defined term, Material Climate Change Information, is not expressed in a single sentence or even a paragraph. Rather it is pleaded as the information in [77A.1]-[77A.2], which is the “existence, nature and extent of Physical Risk and Transition Risk” and/or the effect or likely effect of those risks on the four matters pleaded in [76.1] to [76.4] and/or the value of eAGBs. Further, the terms “Physical Risk” and “Transition Risk” are themselves defined, and in each case understanding that term requires reference to other allegations in the pleading. Each of those paragraphs can then only be understood by reference to other allegations. On the respondents’ argument, the complexity of the pleading is an attempt to obscure that the applicant is not in a position to identify what it is she says the respondents must disclose.
They argued that the allegations concerning Physical Risk, Transition Risk and the effect of the risks on eAGBs are pleaded in the most general and high‑level terms, and fail to grapple with the temporal aspect of the claims. They provided two examples in this regard.
First, they submitted that a fundamental factual matter that is absent from the pleadings is the terms of the bonds. They ask, what obligations of the Commonwealth under the bonds is it said that the Commonwealth will not be able to honour? The annual interest or the redemption of the bonds at maturity? And why? And when?
Second, they said that the pleading fails to grapple with the temporal aspects of the applicant’s case. It is uncontentious that the eTIBs acquired by the applicant have a maturity date of 21 February 2050 and that the eTBs acquired by the applicant have a maturity date of 27 March 2047. It is alleged that Australia will experience Physical Impacts “over the coming decades” (at paragraph [61]), has agreed to reduce its GHG emissions by 26% to 28% below 2005 levels by 2030, and has accepted that it must achieve net zero GHG emissions in relation to its role concerning the Net Zero Target in the Paris Objective. But, the pleadings say nothing about the critical issues of timing. For example:
(a)in paragraph [63] it is alleged that significant additional expenditure will or will likely be required, but it is not alleged when;
(b)in paragraph [64] and [64B] it is alleged that “industries and communities” will likely be negatively affected by the Physical Impacts identified in paragraph [61], leading to a substantial reduction in revenue, but it is not alleged when the effects will occur or when the reduction in revenue will begin;
(c)in paragraph [75] it is alleged that the less time that the Commonwealth has to meet the Net Zero Target the greater the expenditure required will be, but it is not alleged when this expenditure is expected to start or finish;
(d)in paragraph [76] it is alleged that the Physical Risk and/or the Transition Risk will or is likely to have a “material adverse impact” on the Commonwealth’s “status and reputation as a reliable and safe issuer of sovereign debt securities”; its “capacity to maintain its AAA status”; and its “capacity to respond to economic shocks”, but it is not alleged when any of those things will occur; and
(e)in paragraph [77] it is alleged that these matters separately and cumulatively are or are likely to be material to the value of eAGBs on the market, but is not alleged when.
Everything else is said to be pleaded at such a level of generality as to be meaningless, including because it is unclear:
(a)what is “substantial” or “significant”?;
(b)how “likely” is it said to be that certain things will happen?;
(c)what are each of the “industries and communities” and how will they be specifically affected?;
(d)what does “negatively affected” mean?; and
(e)what is the “material” effect on the value of eAGBs and why would the four general matters alleged in paragraph [76] have such a material effect?
This is said to lead to significant problems of unfairness and prejudice for the respondents. As examples, the respondents referred to:
(a)paragraph [62], which alleges that the Commonwealth relies upon receiving “directly and indirectly, significant revenue” from a number of broadly described industries and communities, as well as “individuals employed by, or associated with, those industries and communities”. The respondents contended that the broad scope of the paragraph and the use of general and sweeping language, together with the breadth and generality of other paragraphs, have a cascading effect on the pleading rendering it nigh-on impossible to understand in concrete terms; and
(b)paragraph [64], which alleges that the financial viability of the various broadly described sources of Commonwealth revenue alleged in paragraph [62] will be “or are likely to be” “negatively affected” by the Physical Impacts. They contended that the use of the word “likely” in this paragraph and throughout the pleading makes the allegation that the respondents were aware of certain things too broad and general.
They said that one way these issues may be tested is to ask how the respondents’ legal advisors might possibly seek instructions about such broad allegations.
On the respondents’ submissions, in order to understand any of the claims advanced by the applicant, it is necessary to understand what it is said should have been or should be disclosed, and a clear articulation of the “Climate Change Material Information” is essential. Yet, they contended that it is not possible to understand that core concept because it relies on allegations that are so generally framed they have no content or meaning. For example, in relation to the misleading or deceptive conduct claim, the pleading provides no clear answer to the question of what information the applicant says the respondent should have disclosed, to avoid contravention of s 12DA of the ASIC Act.
In their post-hearing submissions in relation to the Proposed 2FASOC, the respondents said there were three important points.
First, paragraphs [76A] and [77] of the 2FASOC are critical allegations with respect to the identification of the material information, but they plead conclusory allegations and not the material facts necessary to make good the conclusory facts. And even if the conclusory allegations were accepted, their effect is not what the applicant presumably intends.
On the respondents’ argument, tracing through the revised allegations in the pleading, the Physical Risk and Transition Risk are now defined terms meaning an increase or likely increase in Commonwealth expenditure, and a decrease or likely decrease in Commonwealth revenue, brought about at some unidentified point before 21 February 2050 or 21 March 2047 by certain alleged consequences of climate change. Then, paragraph [76] alleges that this increase or likely increase in Commonwealth expenses or decrease or likely decrease in Commonwealth revenue will or will be likely to lead to the four matters listed in sub-paragraphs [76.1]-[76.4], being:
[76.1]the Commonwealth’s status and reputation as a reliable and safe issuer of sovereign debt securities;
[76.2] the Commonwealth’s capacity to maintain its AAA status as an issuer of sovereign debt securities;
[76.3]the Commonwealth’s capacity to respond to economic shocks and to sustain balanced economic growth and a balanced budget; and;
[76.4]the Commonwealth’s capacity to discharge its interest and principal obligations under the eAGBs held by the applicant and by the other persons holding eAGBs at the material times.
The respondents said that the immediate difficulty is that the pleading does not plead the necessary material facts linking the alleged increase in expenses or decrease in revenue to those four sub-paragraphs. They argued that many different things may lead to an increase in Commonwealth expenditure or a decrease in Commonwealth revenue. Many policies of Government (to take two recent and prominent examples, Jobkeeper and Jobseeker) lead to substantial increases in Commonwealth expenditure. Many changes in economic conditions (to take two well-known and prominent examples, an economic downturn or a fall in the spot price of iron ore) lead to substantial decreases in Commonwealth revenue.
The respondents submitted that the premise of paragraph [76] seems to be that material changes to Commonwealth expenses or revenue might have a material adverse impact on the four matters listed in sub-paragraphs [76.1]-[76.4], but why that is so is not pleaded. Further, even if it was pleaded, it cannot be that the Commonwealth is required to identify every possible event or economic change or government policy that could ever occur over a space of 30 years that might lead to a significant increase in expenses or decrease in revenue. That cannot be the material information.
Nor, it was said, having regard to paragraph [77], is it the case that the Commonwealth needs to disclose that there is a risk of an increase in Commonwealth expenditure or decrease in Commonwealth revenue. The respondents submitted that paragraph [77] alleges that the matters alleged in paragraph [76] are likely to be material to the value of eAGBs on the ASX, but the material facts connecting the propositions are not pleaded. For example, there are no material facts pleaded that establish that a material adverse impact on the Commonwealth’s capacity to respond to economic shocks and sustain balanced economic growth and a balanced budget (at sub- paragraph [76.3]) is or is likely to be material to the price at which the eAGBs held by the applicant are traded on the ASX. Nothing is said to explain why such a future event, or the other identified matters in the four sub-paragraphs, are or are likely to have an effect on the market price of eAGBs.
This is said to lead back to a conceptual difficulty with the applicant’s case that is highlighted in the Proposed 2FASOC. Her case, as now framed, is simply that an increase in Commonwealth expenses or decrease in Commonwealth revenue might be material to the price at which her eAGBs trade on the ASX. Even if she pleaded material facts capable of establishing this connection, the relevant risk is that there will be a change in the market price at which her eAGBs trade on the ASX. Yet the Proposed 2FASOC pleads (at paragraphs [54.4], [55.4], [56.3] and [57.3]) that the Information Statements and the AGB Website disclose that a change in the market price is a risk associated with investing in eAGBs.
On the respondents’ argument, the applicant has not pleaded anything capable of constituting an undisclosed risk. Even if the applicant had pleaded the necessary material facts to connect climate change to the four matters alleged in sub-paragraphs [76.1]-[76.4], and in turn to the matters alleged in paragraph [77], she has not pleaded anything capable of explaining why any one reason that the market price could change needs to be disclosed. They submitted that the applicant has deliberately eschewed pleading any more specific case about change in the market price of eAGBs, or a material risk that the Commonwealth would default on the eAGBs. The case pleaded is no more than an assertion that there is a material risk that the market price of the bonds might change, which cannot be said to be a risk that was not disclosed by the respondents.
Second, the issue as to whether the applicant’s case is that there was and/or is a risk of default or a risk of change in market price was raised in oral argument. Senior Counsel for the respondents said that there were two ways in which the applicant might have pleaded their case in relation to the risk that faced persons holding eAGBs, being that there is a material risk, which the applicant can identify, that:
(a)the Commonwealth will in the future be unable to discharge its obligations to make the interest payments on the bonds as and when they fall due and/or to repay the principal sum upon maturity of the bonds. The pleading does not, however, plead any material facts capable of establishing a material risk that the Commonwealth will default on its obligations under the bond; and
(b)the eAGBs will trade at a lower price on the ASX. But on the respondents’ argument this risk is related to the first risk, because the price of the bonds on the ASX will reflect the underlying value of the security of the Commonwealth’s obligation to make the interest payments as and when they fall due and to repay the principal sum upon maturity. The only relevant material risk that could possibly have any bearing on the price at which eAGBs trade on the ASX is the risk that the Commonwealth will in the future be unable to discharge its obligations under the eAGBs and, again, there is no proper pleading of any such matters.
The respondents submitted that there is no case properly pleaded as to any material risk that the Commonwealth will default on its obligations. The only case that is pleaded is the case at paragraphs [76] and [77], that the four matters listed in sub-paragraphs [76.1]-[76.4] are likely to be material to the value of eAGBs on the ASX. The general allegation in sub-paragraph [76.4] as to a material adverse impact on “the Commonwealth’s capacity to discharge its interest and principal obligations under the eAGBs” is made but that means no more than that its total capacity to discharge its obligations reflects its revenue and expenses. The applicant has not pleaded a risk of default and if she had done so it would have required identification of substantial and specific material facts, not generalised allegations.
In the disclosure duty claim the applicant seeks declarations in a representative capacity and slightly different declarations and injunctions in a personal capacity. To seek declaratory relief, the question to be decided must be real and not theoretical and the applicant must have a “real interest” in raising the questions to which the declaration would go: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448 (Lord Dunedin), quoted with approval in Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 437-438 (Gibbs J as his Honour then was); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [103] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The applicant also seeks similar declarations and injunctions in the PGPA Act claim. The applicant accepted that to have standing to enforce the public duty imposed upon the second and third respondents under s 25(1) of the PGPA Act she must have “a special interest in the subject matter of the litigation”. The applicant did not suggest that there was any difference, in this respect, between an application for a declaration and for an injunction.
In ACF, the Australian Conservation Foundation brought a proceeding against the Commonwealth and some of its Ministers for declarations, injunctions and other orders to challenge the validity of decisions concerning a proposal to establish a resort and tourist area in central Queensland and exchange control transactions in connection with the proposal. The defendants applied to dismiss the action on the ground that the ACF had no standing to bring it. The ACF accepted that to establish standing it was required to show that it had a “special interest” but it argued that interest need not involve a legal right and need not be an interest peculiar to the plaintiff. It said that it could include “what might be called ideological interests such as beliefs or objectives shared by a number of people or a section of society on a moral, social or environmental question.” It contended it had standing to bring the proceeding because of its well-known interest in the preservation and conservation of the environment and because it had lodged a submission commenting on the draft environmental impact statement pursuant to the Environment Protection (Impact of Proposals) Act1974 (Cth). The ACF also argued that the question of standing should not have been dealt with as a preliminary issue, as Aickin J did in the proceeding below. Instead, they said standing should have been determined after the evidence, when the merits and relief were being considered: see ACF at 515.
Gibbs, Steven and Mason JJ held (with Murphy J dissenting) that the ACF had no standing to maintain the action. Gibbs J (as his Honour then was) explained (at 526):
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.
(Emphasis added).
Later in his reasons (at 530-1), his Honour elaborated on his understanding of “special interest”:
I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.
(Emphasis added).
In Onus, handed down the year after ACF, the High Court again considered the “special interest” test, but with a different result. The Court held that members of the Gournditch-jmara Aboriginal people had a special interest in the prevention of construction works on land which contained Aboriginal relics of which the tribe was custodian. Gibbs CJ said the following (at 35-36):
A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out [in ACF], the question of what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
(Emphasis added).
Gibb CJ’s remarks were approved by Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Employees (at 558). Their Honours added that “[t]he rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.”
In Bateman’s Bay at [46], Gaudron, Gummow and Kirby JJ endorsed those observations. The plurality said:
In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have “a special interest in the subject matter of the action”. Their Honours stated that the rule is flexible and continued that “the nature and subject matter of the litigation will dictate what amounts to a special interest”. This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to “deny to an important category of modern public statutory duties an effective procedure for curial enforcement”.
(Citations omitted).
The parties did not identify any authority which could be said to be on all fours with the present case, and save for their statements of principle they were of limited assistance. As Mason J (as his Honour then was) said in Robinson v Western Australian Museum [1977] HCA 46; 138 CLR 283 at 327-328, cited with approval by Gibbs CJ in ACF at 528, the “cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.” But in relation to issues of principle a number of points emerge from the authorities:
(a)an applicant must show a special interest in the subject matter of the litigation;
(b)the need for a special interest reflects the need to show an interest or a position that is different from the public at large;
(c)the expression “special interest” does not supply a ready rule of thumb capable of mechanical application. The test is “flexible”;
(d)what suffices as a special interest will vary according to the nature of the subject matter of the litigation, including the relief sought, and it is a question of fact and degree in each case. The application of the special interest test is fact and context specific; and
(e)the need to show a special interest is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest must be more than emotional or merely intellectual.
Considered at a level of abstraction and by making some assumptions about matters on which the pleadings and evidence are silent, I could accept that the applicant has a sufficient interest to meet the “real interest” test in relation to the disclosure duty claim, and the “special interest” test in relation to the PGPA Act claim. It is uncontroversial that, a short time before the applicant commenced the proceeding, she purchased nine eAGBs for $1,149.75, which eAGBs she continues to hold. Considered at that high level, it could be said that:
(a)the applicant has an interest related to the relief being sought (see ACF). Her interest is in receiving Material Climate Change Information, i.e. information about risks to the Commonwealth’s financial position and any effect of those risks on the value of her eAGBs on the ASX, which she says will or might reasonably be expected to inform her decisions about holding or disposing of the eAGBs, and which thereby directly affects her current financial interests. Such an interest could be said to be appropriately connected to the declaratory and injunctive relief she seeks;
(b)for similar reasons, it could be said that the applicant’s interest is not just an emotional or merely intellectual interest (see ACF at 530; Bateman’s Bay at [96] (McHugh J)). Obtaining the relief she seeks could be viewed as giving her an advantage beyond simply righting a wrong or upholding a principle (see ACF at 530); and
(c)for similar reasons, the fact that the applicant owns eAGBs, and has a financial interest in their value, could be seen as differentiating her from the public at large, and it could be said that she has an interest greater than the public at large (see ACF at 527; Onus at 74 (Brennan J); Bateman’s Bay at [98] (McHugh J)).
At that high level, the disclosure duty and PGPA Act claims could be said to involve a question of “real practical importance” for the applicant, rather than it being a hypothetical inquiry (see Edwards v Santos [2011] HCA 8; 242 CLR 421 at [38]-[39], [1] (Heydon J with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ agreed). On this analysis, the applicant may be said to have a “real interest” and also a “special interest” in obtaining the declaratory and injunctive relief she seeks. On that basis she would have standing to bring those claims.
However, the “special interest” and “real interest” requirements are fact and context specific: Vicforests v Kinglake Friends of the Forest Inc [2021] VSCA 195 at [61] (Niall, Emerton and Kennedy JJA). Deciding whether those requirements have been met involves an assessment of the importance of the concern which a plaintiff has with the particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter. Resolution of the questions of fact or degree in relation to standing may sometimes depend on the resolution of controverted questions of law or fact: Robinson at 302 (Gibb J, as his Honour then was).
In Robinson at 302-3, Gibbs J said that where it is disputed that an applicant has a special interest:
The Court has a discretion: it is not bound to take one course rather than the other. If the plaintiff’s claim to have locus standi is merely colourable, and can easily be exploded, the Court will no doubt proceed immediately to decide the question of standing and, having decided against the plaintiff, will dismiss the action. But if the investigation of the claim requires a consideration of weighty and complex questions which may never fall for decision if the issue of validity decided against the plaintiff, it may be more convenient to proceed immediately to determine the validity of the challenged statute.
It is uncontentious that on or about 3 July 2020 the applicant purchased:
(a)five eTIBS with a maturity date of 21 February 2050; with ASX code GSIC50, at an average price of $125.72 per unit for a total consideration of $628.60, which units each have a face value of $100; a coupon interest rate of 1% per annum and coupon payment dates of 21 February, 21 May, 21 August and 21 November each year; and
(b)four eTBs with a maturity date of 21 March 2047; with ASX code GSBE47, at an average price of $127.78 per unit for a total consideration of $521.15, which units each have a face value of $100; a coupon interest rate of 3% per annum and coupon payment dates of 21 March and 21 September each year.
The settlement date for the purchases was 7 July 2020, and on 22 July 2020 the applicant commenced this proceeding.
Based on her acquisition of the eAGBs the applicant contended that she has standing to bring the proceeding because disclosure of the material information she alleges should have been and/or should be disclosed to her may have an impact on her financial position, and also that it can reasonably be expected that the alleged non-disclosed information would have had or will have a material influence on her decisions as to whether to hold or dispose of her current interests.
The respondents submitted that while the applicant acquired and holds a small number of eAGBs, purchased for a relatively modest sum just before she commenced the proceeding, she:
(a)does not allege that she was misled in the purchase of the eAGBs;
(b)does not allege that she would have acted differently if the respondents had disclosed Material Climate Change Information to her, whether by not purchasing the eAGBs or by deciding to sell them;
(c)has not pleaded any material facts to support her contention that the information she alleges should have been disclosed may have an impact on her financial position;
(d)has not pleaded any material facts to support the allegation that such information might reasonably be expected to have a material influence on her decision as to whether to hold or dispose of her interests; and
(e)does not allege she has suffered any financial loss by reason of the alleged breach of the disclosure duty or in relation to the PGPA Act claim.
As the respondents contended, those matters are important because they go to the question of whether the applicant has a “real interest” in the relief sought, and/or a “special interest in the subject matter of the litigation”.
The temporal closeness of the applicant’s purchase of a small number of eAGBs, and the commencement of the proceeding suggests that she purchased them for the purpose of bringing the proceeding. If that is true, it may be appropriate to infer that the eAGBs are the vehicle for a proceeding with the aim of pressuring the Commonwealth government in relation to inaction on climate change. If that is the case, it might be inferred that provision of Material Climate Change Information to the applicant would not be likely to have affected or to affect her decisions in relation to holding or disposing of her eAGBs. It is though unnecessary to draw such inferences.
It is enough that, from the outset, the respondents have contended that the applicant failed to show either through the pleadings or by evidence that she has standing to bring the disclosure duty and PGPA Act claims. They said, and it is uncontentious, that if the applicant has no standing, the court has no jurisdiction to decide those claims: Truth About Motorways at [120] (Gummow J).
By way of example of the type of material the applicant should have put on, the respondents relied on the decision in WOTCH Inc v Vicforests (No 6) [2020] VSC 674 (Keogh J). The plaintiff in that case, WOTCH Inc, was a community-based, not-for-profit, incorporated association with an interest in protecting the flora and fauna of Victoria’s native forests. It sought declaratory and injunctive relief to protect various forest coupes located in different regions in Victoria, both within the Central Highlands and outside that region. The defendant, VicForests, was a state body which undertook timber harvesting in State forests in Victoria. It accepted that WOTCH had standing in relation to forest coupes within, but not beyond, the Central Highlands and the relevant question for the Court was whether WOTCH had demonstrated that it has a special interest in the subject matter of the proceeding in respect of forest coupes outside the Central Highlands. At [18]-[34] Keogh J summarised the detailed affidavits filed by the plaintiff to establish its special interest. The evidence adduced by the plaintiff to establish standing in WOTCH stands in stark contrast to the complete absence of any evidence from the applicant in the present case.
Having regard to the respondent’s contentions in relation to standing, it should have been straightforward for the applicant to put on evidence to show, for example, that if she had been or is provided with Material Climate Change Information, it would likely have been or would likely be material to her decision as to whether to hold or dispose of the eAGBs; yet she has put on nothing in this regard. In circumstances where the applicant purchased a handful of eAGBs a short time before she commenced the proceeding; and faced as she was with the respondents’ strenuous contention that she had no standing, the applicant should have put on evidence in order to establish her asserted “real” and “special” interest.
Without the applicant having done so, I am not persuaded that it is appropriate to conclude that the relief the applicant seeks:
(a)has any “real practical importance” for her, or that the questions raised in the proceeding are “concrete and real” rather than hypothetical: see Edwards at [38]-[39], [1];
(b)will give her an advantage beyond simply righting the wrong of the respondents’ alleged failure to disclose the Material Climate Change Information: see ACF at 530;
(c)is not merely an emotional or intellectual interest in protecting the environment from the risks of climate change: see ACF at 530; Bateman’s Bay at [96]. In saying this I do not suggest that such an aim is not worthy or is somehow illegitimate. It is just to note that such an aim alone is insufficient to satisfy the test for standing in relation to the disclosure duty and PGPA Act claims; and
(d)will, in reality, affect her financial interests. Equity is concerned with substance rather than form, and I am not persuaded that the applicant has any real interest in whether the value of her AGBs is materially affected by the risks of climate change. In the absence of any real effect on the applicant’s financial interests, her position is no different from any other member of the public: see ACF at 527; Onus at 74; Bateman’s Bay at [98].
I am therefore not persuaded that the applicant has any “real interest” or “special interest” in the relief sought in the proceeding, and she therefore lacks standing to bring the disclosure duty and PGPA Act claims.
Having regard to the above I do not accept the applicant’s contention that it is inappropriate to strike-out the disclosure duty and PGPA Act claims because they are founded on the same underlying factual matrix as the misleading or deceptive conduct claim which remains on foot. Having decided that the applicant lacks standing, she cannot bring the duty of disclosure and PGPA Act claims, and the Court has no jurisdiction to hear them.
CONCLUSION
The parties are directed to confer and endeavour to agree on minutes of orders to give effect to these reasons, within 14 days. The parties shall provide any agreed orders to my chambers, and in the absence of agreement, their competing minutes of order with any short submissions in support (no more than two pages).
I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 8 October 2021
SCHEDULE A – PHYSICAL RISK
60On and since 7 July 2020, and at the date of delivery of this pleading (the material times), there has existed a significant likelihood that the climate is changing and will continue to change, as a result of anthropogenic influences (Climate Change).
…
61At the material times, it has been projected that Australia will experience the following Physical Impacts as a result of Climate Change over the coming decades, including before the maturity dates of the eAGBs held by the applicant:
61.1continued warming, with more extremely hot days and fewer extremely cool days;
61.2a decrease in cool season rainfall across many regions of the south and east, likely leading to more time spent in drought;
61.3a longer fire season for the south and east and an increase in the number of dangerous fire weather days;
61.4more intense short-duration heavy rainfall events, and serious flooding events, throughout the country;
61.5fewer tropical cyclones, but a greater proportion projected to be of high intensity, with ongoing large variations from year to year;
61.6fewer east coast lows particularly during the cooler months of the year, and for events that do occur, sea level rise will increase the severity of some coastal impacts;
61.7more frequent, extensive, intense and longer-lasting marine heatwaves leading to increased risk of more frequent and severe bleaching events for coral reefs, including the Great Barrier and Ningaloo reefs;
61.8continued warming and acidification of its surrounding oceans;
61.9ongoing sea level rise;
61.10more frequent extreme sea level events, which were once per hundred year events becoming, over time, annual events.
…
62At the material times, the Commonwealth relies upon receiving, directly and indirectly, significant revenue (including taxes) from:
62.1the agricultural industry;
62.2the tourism industry;
62.3industries and communities located on Australia’s coastlines;
62.4industries and communities located in bushfire-prone areas or bushfire smoke-prone areas;
62.5industries and communities located in drought-prone areas or heatwave-prone areas;
62.6the resources industry (including the fossil fuel industry);
62.7the financial industry;
62.8the export industries;
and from individuals employed by, or associated with, those industries and communities.
63Before the maturity dates of the eAGBs held by the applicant, significant additional expenditure by Commonwealth will, or will likely, be required:
63.1to maintain the ongoing financial viability of the industries and communities referred to in paragraph 62 above;
63.2 to respond to emergency weather events of the kind referred to in paragraph 61 above (that is, extreme temperature days; drought events; fire events; rainfall events; cyclone events; bleaching events; extreme sea level events), including to:
63.2.1assist industries and individuals adversely affected by those events;
63.2.2fund recovery and reconstruction operations; and
63.2.3fund additional emergency services.
64The financial viability of the industries and communities identified in paragraph 62 above are particularly vulnerable to being, and will be, or will likely be, negatively affected by the Physical Impacts identified in paragraph 61 above before the maturity dates of the eAGBs held by the applicant.
Particulars
The Intergenerational Report 2021 recognises that impacts of climate change are already being felt by the agricultural sector: at 60.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
64BThe negative effects referred to in paragraph 64 above will lead, or will be likely lead, to a substantial reduction in revenue received by the Commonwealth from those industries before the maturity dates of the eAGBs held by the applicant.
Particulars
The Intergenerational Report 2021 recognises that climate change is expected to have physical effects on Australia’s economy, including by reducing taxation revenue: at page 59. It recognises that the agricultural sector and the financial industry is particularly vulnerable to physical effects: at pages 59-60.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
64C The:
64C.1increase, or likely increase, in expenditure by the Commonwealth referred to in paragraphs 63; and
64C.2decrease, or likely decrease, in revenue received by the Commonwealth referred to in paragraph 64 above;
is a Physical Risk.
SCHEDULE B – TRANSITION RISK
60AIt is an objective of the Paris Agreement, made on 10 November 2016 and ratified by the Commonwealth, to strengthen the global response to the threat of Climate Change, including by holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels (Paris Objective), recognizing that this would significantly reduce the risks and impacts of Climate Change.
Particulars
Paris Agreement, Article 1(a).
…
68Under Article 4(2) of the Paris Agreement, the Commonwealth is obliged to prepare, communicate and maintain successive nationally determined contributions that it intends to achieve, and pursue domestic mitigation measures with the aim of achieving the objectives of such contributions.
69Pursuant to Article 4(2), the Commonwealth’s nationally determined contribution is to reduce greenhouse gas (GHG) emissions by 26 to 28 per cent below 2005 levels by 2030 (Australia’s Paris Commitment).
Particulars
Australia’s Nationally Determined Contribution, 2015.
70Pursuant to Article 4(2), the Commonwealth is obliged to pursue domestic mitigation measures with the aim of achieving Australia’s Paris Commitment (Australia’s Paris Measures).
71To achieve the Paris Objective, it will be necessary for global GHG emissions to be net zero by 2050 (Net Zero Target).
Particulars
IPCC Special Report: Global Warming of 1.5°C.
72The Commonwealth has accepted that it must achieve net zero GHG emissions in relation to its role concerning the Net Zero Target.
73The Commonwealth has indicated that it would be preferable to achieve net zero GHG emissions in relation to its role concerning the Net Zero Target by 2050, but has refused to commit to doing so by that time.
Particulars
The Intergenerational Report 2021 states that the Government has committed to reaching net zero as soon as possible, preferably by 2050: at 61.
74To reach the Net Zero Target by 2050, the Commonwealth would be required to pursue domestic mitigation measures in addition to Australia’s Paris Measures (Net Zero Measures), the implementation of which will, or will likely, require significant additional expenditure by Commonwealth before the maturity dates of the eAGBs held by the applicant.
Particulars
The Intergenerational Report 2021 recognises that transition effects relate to the impacts of global and domestic efforts to reduce greenhouse gas emissions, which includes the costs of Australia’s mitigation efforts: at 59.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
75The less time in which the Commonwealth has to meet the Net Zero Target from the time it begins to implement the Net Zero Measures, the progressively greater the amount that the Commonwealth will be, or will likely be, required to expend to:
75.1implement Net Zero Measures;
75.2counter any adverse impact to the Australian economy as a result of delayed implementation of the Net Zero Measures.
Particulars
The Intergenerational Report 2021 recognises that early investment in adaptation will mean Australia is better prepared and safer from current and future climate change, and will remain an attractive place to do business: at 63.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
75AAs a result of other countries seeking to achieve net zero GHG emissions in relation to their role concerning the Net Zero Target prior to 2050, global demand for exports of Australia’s fossil fuel will decrease, or is likely to decrease, before 2050.
Particulars
The Intergenerational Report 2021 recognises that 129 countries have committed to net-zero emissions by 2050, including key trading partners such as Japan and South Korea, while China has committed to carbon neutrality by 2060. In 2019-20, these 3 countries accounted for 87 per cent of Australia’s LNG export value, 74 per cent of Australia’s thermal coal export value and 55 per cent of Australia’s metallurgical coal export value.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
75BThe decrease, or likely decrease, in global demand referred to in paragraph 75A above will result, or is likely to result, in a decrease in revenue received by the Commonwealth from the fossil fuel and export industries (referred to in paragraphs 62.6 and 62.8 above) before the maturity dates of the eAGBs held by the applicant.
Particulars
The Intergenerational Report 2021 recognises that revenue sources such as fuel excise and mining royalties could be affected by changes in demand and consumption related to a global transition away from fossil fuel use: at 60. It also recognises that, if commitments to net zero by 2050 by other countries are fully implemented, those commitments will likely reduce demand for unabated fossil fuels over some decades: at 60.
The applicant will provide further particulars if requested by the Respondents, including after discovery.
75C The:
75C.1increase, or likely increase, in expenditure by the Commonwealth referred to in paragraphs 74 and 75; and
75C.2decrease, or likely decrease, in revenue received by the Commonwealth referred to in paragraph 75B above;
is a Transition Risk.
SCHEDULE C – THE EFFECT OF RISKS OF EAGBS
76By reason of the Physical Risk and/or the Transition Risk there will be, or is likely to be, a material adverse impact on the following matters prior to the maturity dates of the eAGBs held by the applicant:
76.1the Commonwealth’s status and reputation as a reliable and safe issuer of sovereign debt securities;
76.2the Commonwealth’s capacity to maintain its AAA status as an issuer of sovereign debt securities;
76.3the Commonwealth’s capacity to respond to economic shocks and to sustain balanced economic growth and a balanced budget; and
76.4the Commonwealth’s capacity to discharge its interest and principal obligations under the eAGBs held by the applicant and by the other persons holding eAGBs at the material times.
77The matters in paragraphs 76.1 to 76.4 above, separately and cumulatively, are factors that are, or are likely to be, material to:
77.1 the value of AGBs on the wholesale market for AGBs, and consequentially, a material effect on the value of eAGBs on the ASX, including those held by the applicant and the Represented Persons;
77.2alternatively, the value of eAGBs on the ASX, including those held by the Applicant and the Represented Persons.
77A By reason of the matters in paragraphs 76 and 77 above, information about:
77A.1the existence, nature and extent of Physical Risk and Transition Risk; and/or
77A.2the effect, or likely effect, of those risks:
77A.2.1 on the matters in paragraphs 76.1 to 76.4 above; and/or
77A.2.2 on the value of eAGBs as referred to in paragraph 77 above;
is information that:
77A.3will inform holders of eAGBs about significant risks associated with holding the eAGBs that persons would reasonably require for the purpose of persons, including the applicant and the Represented Persons, making a decision whether to acquire, continue to hold, or to dispose of eAGBs; and/or
77A.4might reasonably be expected to have a material influence on:
77A.4.1decisions by holders of eAGBs, including the applicant and the Represented Persons, as to whether to hold or dispose of their current interests in eAGBs; and
77A.4.2decisions by potential investors of eAGBs as to whether to purchase eAGBs.
(the information referred to in paragraphs 77A.1 to 77A.2 constitutes Material Climate Change Information).
77B. At the material times, each of the Respondents:
77B.1 were aware of, or
77B.2 ought to have been aware of;
each of the matters that constitutes Material Climate Change Information.
Particulars for paragraph 77B.1
The applicant refers to the particulars for paragraphs 61, 64, 64B, 73, 74, 75, 75A and 75B above.
The Task Force on Climate-Related Financial Disclosures, Recommendations of the Task Force on Climate-related Financial Disclosures (Final Report, June 2017) is a widely available document concerning the disclosure of climate-related financial information for businesses. In the Government Response (dated March 2018) to Recommendations made by the Senate Economics reference Committee, tabled 21 April 2017 (“Carbon risk: a burning issue”), the Government noted the recommendation to implement the recommendations of the Task Force. The Government welcomed the release of the Final Report and encouraged all stakeholders to carefully consider the recommendations. The Government did not consider further law reform was required, because the disclosure requirements in the Corporations Act 2001 (Cth) are “principles-based and do not impede the implementation of the Taskforce’s recommendations”.
On or around 9 June 2021, in response to a question concerning climate risk disclosure by sovereign bond issuers, the Third Respondent said that the AOFM was getting “a range of responses particularly from the European investors that ranges from curiosity to finger waving to a bollocking”. The CEO said there that the issuer rating rather than the instrument rating in particular will be something that might take on more prominence. He also said that there would be an increased focus from fixed income investors about what governments are doing to react to the challenges ahead, and that the AOFM had discussed the efforts of S&P Global Ratings to incorporate environmental, social and governance risks into their sovereign ratings. He said that as that develops “all countries including Australia will have to make sure that they’re aware of what the criteria are and how we are going to sit relative to other countries. Because sovereign issuer ratings through the core ratings agency process will tend to gather more attention than other measures”: see Exhibit DLB-5 to the Affidavit of David Barnden.
Having regard to the matters in paragraphs 12 to 16 above, the knowledge of officers and agents within the AOFM, obtained in the course of their duties, are attributable to the Second and Third Respondents. The knowledge of officers and agents within the Treasury, obtained in the course of their duties, are attributable to the Second Respondent and the Treasurer. The knowledge of the Second and Third Respondents, and the Treasurer, obtained in the course of their duties (including as attributed to them), are attributable to the Commonwealth.
The applicant is unable to provide further particulars until after discovery.
Particulars for paragraph 77B.2
The applicant refers to the particulars for paragraph 77B.1.
Australia has joined the Coalition for Climate Resilient Investment, working with the investment sector to better consider physical climate risks and create resilient investment solutions: Intergenerational Report 2021 at 64.
In 2006, the Commonwealth published “Climate Change Impacts & Risk Management: A Guide for Business and Government”.
The Commonwealth’s financial regulators (including ASIC) have recognised that climate change is exposing the financial system to risks that will rise over time. To respond to these risks, regulators are working on strengthening the identification and management of climate-related risk and improving disclosure: Intergenerational Report 2021 at 61.
The applicant is unable to provide further particulars until after discovery.
18
11